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Law
10
WHAT HAPPENS WHEN LESBIAN
FAMILIES BREAK UP, ASKS JENNI
MILLBANK.
A significant, and increasing, number of
lesbian couples are having babies using
assisted reproduction such as donor
insemination or IVF. In general, lesbian
couples who have children together see
themselves as equal parents and share
child care, financial and economic
responsibility fairly equally (indeed all
the studies tell us they do so much more
equally than heterosexual couples do).
Sometimes a known donor will have
contact and involvement with the child
but he is very rarely a parent figure, living
with the child, or exercising parental
authority. Nonetheless while a lot of
women worry about what will happen
if they and the donor disagree about the
child, very few seem to turn their minds
to another “what if?” – what happens with
the kids if the couple itself breaks up?
Lesbian couples do break up (maybe you
have known a few) and as time goes by,
more of them will have children.
In fact at the moment co-mothers and
sperm donors are in a fairly similar
position. Neither are legal parents. But the
Australian Family Court, unlike those in
many other countries, has always had the
ability to hear applications from, and make
orders in favour of, any person “concerned
with the care, welfare and development”
of the child. So, in contrast to the common
perception that mothers and donors “don’t
have a leg to stand on”, they can and do
use the Court to seek contact, residence
and parental responsibility where they
have a strong relationship with the child.
In some of the earlier cases in the 1980s
and 1990s there was still a perceptible
suspicion of lesbian and gay parents.
But this has started to change and in a
number of recent cases the Court has
made consent orders to lesbian mothers
granting them joint parental responsibility
and residence over children. These cases
have all involved couples who were still
together approaching the Court and asking
for the relationship of the co-mother and
child to be recognised. So far the Court
has always held that these orders are in
the child’s best interests. Parenting orders
from the Family Court mean that a co-
mother can say to a school or hospital, or
another adult such as hostile grandparents:
yes I am a parent. Such orders are the
best available legal recognition for lesbian
mums in NSW and most other parts of
Australia (although mothers in Western
Australia, the Northern Territory and the
Australian Capital Territory now have
complete automatic parental recognition
as part of same-sex relationship reforms
in those states, a huge change that will
be discussed in a forthcoming issue of
LOTL).
But what if the mothers themselves are at
odds? There haven’t been a lot of cases
yet. But it is much harder for a co-mother
to be accepted by the Court as a parent
if her ex-partner is saying she isn’t one.
In a case currently underway in Vermont
in the US a birth mother found god and
left the “homosexual lifestyle” (which
included leaving the civil union she’d
been in with her female partner, dropping
the hyphenated surname they had created
together and taking their child to Virginia).
In that case the birth mother has said that
MUMVS.MUM
Lesbian
couples
do break
up (maybe
you have
known a
few) and
as time
goes by,
more
of them
will have
children.
“
”
2 Mums 2.4 Cats
= A Family
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